Torts Outline – Professor Turley

  1. Schools of Thought
  2. Formalism
  3. Code system, consisting of canons, case-made, judge-made rules
  4. Rules are “outcome determinative”; goal- prevent bias/ subjectivity of judges
  5. Fierce notion of judicial neutrality/deference; court should not engage in determining what law should be rather than what it is; leave lawmaking to legislative branch
  6. Legal Realism- replaced Formalism in the Torts Revolution
  7. Rejection of formalism; acceptance of the indeterminacy of the law
  8. Karl Llewellyn found judges selected canons and pre-determined outcome (hidden bias); false neutrality
  9. Began policy goal of creating a stable rule; consider broader implications
  10. consider what reasonable person would have done and the goal of achievement
  11. Normative
  12. Goal- determine what is “norm of society”, what is morally right/wrong in society, usually decided by jury
  13. Hobbes- Leviathan guarantees recourse/ remedy; corrective justice- law must make wrongs right vs. efficiency of CLS (producing most efficient manner of achieving wealth maximization rather than righting of wrongs)
  14. Lockean
  15. Labor Theory: In beginning, all was held in common. Then evolved into private property (mixing of sweat/labor = conversion of common property into private property)
  16. Gvmt does not create priv. property- God created private property;gvmt may not redistribute wealth
  17. Locke’s Proviso: One must leave “as good and enough for others” (used by Rawls to justify redistribution if extreme concentration of wealth occurs b/c it is defeating God’s plan of allowing man to produce through enterprise)
  18. Utilitarianism
  19. gvmt must protect individuals, not just market
  20. Bentham- goal of gvmt- achieve the greatest good for greatest number; invest in social action  tremendous productivity (industrial revolution); gvmt = engineer of society
  21. Feminism
  22. Katherine MacKinnon- law written by middle-aged white men- inherent patriarchalbias
  23. Jurispathic v. jurisgenerative
  24. Jurispathic- basis of law is combative, male model; lawyer is knight; zero sum game- only one person wins/ gains
  25. Better Jurisgenerative- judges evaluate merit on both sides and shape an equitable decision
  26. Bender- should have duty to perform low-cost rescues; Posner agrees, but from an efficiency standpoint
  27. Critical Legal Studies
  28. Goal- judges should actively work to break down class barriers; help marginalized
  29. Sometimes favored judicial activism, courts should be more socially active
  30. DuncanKennedy- peeled onion of Blackstone’s Commentaries
  31. Favored de-construction of ‘legal terms’
  32. Wealth re-distribution is important (Rawls)
  33. CLS counted by Judicial Restraint
  34. Goal- deference to the legislature; judges are not elected and are counter-majoritarian
  35. Madisonian System:
  36. Tri-part gvmt provides checks balances
  37. Factions  political pressure  majority rule (elimination of factions)
  38. If left to judges- no faction pressure relief, too much control given to individual
  39. Hart and Sachs- the system works best when courts leave it to legislature to fill gaps/ ambiguous legislation; Courts must stay in line w/the Madisonian system
  40. But see- Public Choice Movement
  41. Hart and Sachs view is wrong; gvmt often favors minority opinions rather than majority principles; deals/gaps = Congress making decisions to detriment of public
  42. Mancur Olson
  43. disagrees with Madison’s view- collective action: small groups are actually more powerful than big groups b/c small groups have concentrated interest
  44. vs. majority groups, that have dispersed interests and more free riders
  45. Easterbrook
  46. Dealism- gaps in legislation are bought and sold like a market
  47. Court must apply laws exactly as written; do NOT gap fill: limited judicial role
  48. Jonathan Macey- agreed w/public choice criticism, but not the result
  49. DO gap fill; take Congress at its word and enforce the “public-regarding purpose” of legislation; Congress can fix it if wrong
  50. Madisonian democracy works best when open and deliberative process; this is achieved by filling gaps to public regarding purpose, forcing Congress to amend out in open to continue deal-making
  51. Hegel
  52. Personality theory of property- the subjective value of an object to an individual is not recognized by the law- disconnect
  53. the only way to understand property is to understand its relationship to the person
  54. Law and Economics School
  55. Goal- efficiency, not morality
  56. Posner
  57. morality is bad basis for law b/c of subjectivity; it’s indeterminate; focus on economic efficiency instead, which is more tangible and will improve the living conditions
  58. Negligence is the most effective system; strict liability forces cost-internalization, leaving it to the market to dispose of inefficient activities
  59. 2 most common definitions of EFFICIENCY:
  60. Pareto Efficiency
  61. Goal- get a pareto superior result- produces at least one winner and doesn’t make anyone worse off- making things more efficient
  62. Pareto optimality- point of optimal efficiency; point before first loser is produced
  63. Kador-Hicks Efficiency
  64. Goal- wealth maximization; producing losers doesn’t matter as long as there is a net gain; no need to compensate losers
  65. Externalities
  66. Rational actors try to externalize their cost to others (i.e. externalizing pollution)
  67. Hardin’s Tragedy of the commons- wealth maximizing farmers will continue to add cows to shared land w/finite amt. of grass even if doing so will cause the land to stop producing food; result- everyone starves
  68. Solution? Introduce private property  creates incentive to keep resource healthy
  69. Pigou
  70. only legislate when the market fails by allowing something contrary to the long-term needs of society
  71. Examples- stimulus package; force a discriminatory firm off market w/legislation
  72. CoaseTheorum
  73. Coase I- in a perfect market, the market determines the outcome of conflicts btw two uses – more valuable resource will ultimately prevail(farmer/ rancher ex.)
  74. redistribution/regulation not necessary- market will handle it
  75. Coase II- there is no perfect market; must include transactional costs (cost of reaching an accord btw parties), which can cause the outcome to flip- less valuable activity can continue b/c of the high transaction cost of stopping the activity; fewer people affected = higher transactional costs (Turleyworks ex.)
  76. Intentional Harm
  77. Background
  78. Intent
  79. Rest. § 1: Conduct is intentional if the actor:
  80. desires the result/consequence (“purpose” intent); OR
  81. knows or believes the result is substantially certain to occur (“knowledge” intent)
  82. little boy knew old lady would be hurt when he pulled chair out in Garret v. Daly
  83. Children may be held liable of intent
  84. intent inferred from conduct, not motive
  85. Transferred intent- A hits C when intending to hit B; C claims transferred intent; 1st you must establish original intent
  86. Traditional defense- consent
  87. Basic Types
  88. Physical Harm: Trespass to person, land, and chattels
  89. Tresspass to person
  90. Vosburg v. Putney
  91. Rule Violation- Putney kicks Π in shin, lost use of leg
  92. held responsible, even for unforeseen damages
  93. Rule- For intent, it is sufficient to show rule violation, the natural cause of which is injury
  94. Trespass to Land- intent to enter someone else’s land, even if by reasonably mistake (i.e. because unaware it’s someone else’s property)
  95. Trespass to Chattels- intentional dispossession of a thing; loss in valuable int’st
  96. trespass to chattel (stolen but returnable) vs. conversion (destroyed, unreturnable)
  97. Rst. § 218, 19: Liable for direct/ indirect phys. contact causing impairment: of condition, quality, value.
  98. Intangible property: Intel v. Hamidi- trespass to chattels claim fails- emails did not damage the computer system
  99. Physical Harm: Conversion
  100. Rst. § 222- intentional exercise of control over chattel, which seriously interferes w/Π’s right to control
  101. Moore v. Regents of Univ. Cal.- organ removed from body, used for science ($). Usually put in trash so NO conversion.
  102. RULE: custom of chattel disposal effects determination of conversion
  103. Possible Defenses:
  104. slippery slope
  105. slippery slope- if you say removal of tissue is conversion, huge # of issues
  106. bright light argument- say this is not priv. property or slippery slope
  107. floodgates- if tissue is priv. property, thousands of patients whose tissue was used in research
  108. Physical Harm: DEFENSES to Intentional Torts
  109. Consensual Defenses- consent vitiates intent
  110. Rst. § 892: consent when one is willing for conduct to occur
  111. Need- Π’s subjective state of mind consent
  112. Don’t Need- communication to Δ
  113. Apparent consent- Π’s words or conduct is enough (i.e. implied consent in the O’Brien case- stick out arm, stand in line, receive unwanted vaccination)
  114. Mohr v. Williams- Dr. diagnoses left ear, while Π sedated, operates on other ear  civil assault and battery
  115. Rule: Need consent
  116. Issue: Patient’s awareness of consent, and to what
  117. Emergency Rule- Dr.s are not required to get consent if a person is seriously injured (i.e. unconscious or severe pain) and time is of the essence
  118. Proper, informed consent is required
  119. Canterbury v. Spence- Π has back surgery, left unattended, not instruct to stay still, falls off bed
  120. Issue: Duty to disclose risks in acquisition of consent?
  121. Rule: “Informed consent” is required
  122. Rule: You can’t consent to something illegal
  123. Hudson v. Craft- Π, minor, goes to carnival, injured in boxing match
  124. Issue: Did consent to illegal activity negate Δ’s responsibility?
  125. Rule: If you are part of a protected class (i.e. minor), court may ignore consent.
  126. Rule: Public policy can require consent- duty to disclose.
  127. I.e. If you have an STD, you have a duty to disclose (or be held liable). If you do disclose, even if transmission occurs, no liability.
  128. Insanity: Insane/estate usually held liable
  129. McGuire v. Almy- Π, nurse caretaker, insane Δ hit nurse on head w/table leg
  130. Rule: Insane held liable for their intentional torts.
  131. Court uses cheapest cost avoider to determine family is CCA. Turley- nurse/hospital CCA b/c they can get insurance, and nurse knows the danger.
  132. Self-Defense
  133. RST § 63:Rule: May only use reasonable force against imminent harm.
  134. Rule: May only use commensurate force.
  135. May not escalate the encounter by increasing the violence.
  136. Rule: You do not have to retreat.
  137. But may not retaliate once danger is passed. Battered women syndrome not accepted- viewed as retaliation.
  138. Rule: Mistaken self-defense must be reasonable.
  139. Courvoisier v. Raymond- Δ fending off intruders, confuses cop w/intruder and shoots
  140. Rule: Reasonable, mistaken belief of self defense is reasonable.
  141. 3rd party privilege to defend others under same conditions and by same means as one may defend self.
  142. Defense of Property
  143. RST § 77: Rule: May use reasonable force; MAY NOT use force calculated to cause serious bodily injury or death in defense of property. Human life more sacred than property. May use molitormanus- laying gentle hands.
  144. Curtilage- the area around a home that is protected
  145. Rule: May NOT have lethal devices that cannot distinguish btw friend/ foe.
  146. Bird v. Holbrook- walled garden w/spring gun kills kid
  147. Rule: Human life worth more than property; lethal traps illegal.
  148. Rule: Notice is necessary to prevent liability for use of non-lethal devices that can cause injury that are not patent (i.e. electric fence, hidden barbed wire). Patent (visible) barbed-wire is a warning itself.
  149. Controversial: Castle Doctrine/ Make My Day- whenever someone intrudes your domicile, you may use the full range of self-protection (i.e. lethal force ok)
  150. Recapture of Chattels
  151. RST § 100: Limited self-help privilege- reasonable force requirement, recapture must begin promptly
  152. Kirby v. Foster- Π has gained rightful possession of $, Δ fights for it back
  153. Rule: Reasonable force may be used ONLY when dispossession was unlawful
  154. Necessity
  155. An otherwise trespass/conversion on Π allowed in preservation of life or property.
  156. Ploof v. Putnam- Π, family sailing in storm, moor to Δ’s dock, dock’s owner unmoors boat
  157. Rule: There is a duty to allow acts of necessity in order to preserve human life.
  158. Vincent v. Lake Erie Transportation Co.- Δ re-ties failed ropes of boat to dock during storm, dock damaged by boat
  159. Rule: Privilege of private necessity does not negate duty to pay for damages.
  160. Turley: Reverse arg.- dock owner may be CCA (insurance, internalize costs). Ability to sue for lost opportunity costs unclear.
  161. Public necessity- “champion of the common good”; if acting for public good, may destroy public property and not be held liable
  162. Gvmt may always use this argument, but gvmt has waived much of its immunity
  163. i.e. U.S. gvmt compensates war-time victims
  164. Most states have restricted it to keep ppl from claiming it
  165. Emotional/Dignitary Harm: Assault
  166. RST § 21: Assault- intent to cause reasonable apprehension of imminent battery
  167. Need: Intention + Act
  168. Δ must have intent to cause offensive contact or imminent apprehension (Π’s awareness of threat)
  169. Rule: Mere words are not enough to constitute assault
  170. Emotional/Dignitary Harm: OFFENSIVE BATTERY
  171. RST § 18: Battery: Intent to cause offensive contact + offensive contact
  172. If no intention, then only negligent, reckless act, NOT offensive battery.
  173. Emotional/Dignitary Harm: False Imprisonment
  174. False Imprisonment- Δ intends to confine Π w/in boundaries fixed by Δ, and Π is conscious of the confinement or harmed by it
  175. Intent is all that’s necessary; mistake is not a defense.
  176. False arrest = false imprisonment
  177. Future threats do not equal false imprisonment
  178. Bird v. Jones- Π disallowed to continue down blocked highway
  179. Rule: Effective confinement required for false imprisonment.
  180. Possible Scenarios:
  181. Acts of negligence (i.e. stuck on elevator/plane) do not equal false imprisonment.
  182. Confined in a room, but no restraint? Not false imprisonment
  183. Confined in a room, but a high window gives escape? False imprisonment
  184. Coblyn v. Kennedy’s- old man trapped in store after suspected shoplifting
  185. Rule: Short-term ‘imprisonment’ against shoplifters ok if reasonable (equivalent to citizen’s arrest). Time/place/manner is critical to reasonableness.
  186. Emotional/Dignitary Harm: Intentional Infliction of Emotional Distress
  187. Usually parasitic- attached to another claim; courts disfavor IIED w/o parasitic attachment
  188. Emotional Distress- when Δ intentionally inflicts through extreme/outrageous conduct w/a causal connection severe emotional distress
  189. 3rd parties difficulty
  190. RST- majority rule- Family members, if present, may recover; 3rd parties can recover, but (slight) bodily injury/ physical contact is required.
  191. Mishandling a corpse- subject to liability for IIED; only family members can recover; punitive damages sometimes allowed; shared crim/civil liability; aggravating element- culture
  192. Beckstrom’s Socio-Biological Theory- “last of the line” arguments should be allowed; judges leery b/c suggests some children worth more than others (i.e. adopted ones); courts should respect impulse of importance of replicating DNA
  193. Strict Liability and Negligence
  194. Brown v. Kendall- man tries to separate fighting dogs, accidently hits Π w/stick
  195. Rule: Negligence is deciding standard: If Δ was using “ordinary care”- no liability.
  196. Fletcher v. Rylands 1- Δ’s reservoir leaked, damaging Π’s coal mine
  197. Rule: Δ is strictly liable regardless of intent/negligence.
  198. Rylands 2: Rule: Strict liability applies to damage caused by activities/items originating from Δ’s property (i.e. cattle, privy, alkaline works, water reservoirs at the time)
  199. Posner: Negligence is the most effective system; strict liability forces cost-internalization, leaving it to the market to dispose of inefficient activities
  200. DuncanKennedy- here, class issue, courts are protecting the nobility
  201. Rylands 3: Rule: Rylands is strictly liable b/c non-natural use (creation of reservoir). If natural use (mine coal, water percolates through to mine below)- not liable.
  202. Defense only if act of god causes the damage
  203. U.S. quickly rejected having a dominant system of strict liability 
  204. Brown v. Collins- horse startles, breaks lamp post
  205. Rule- SL not applicable b/c horses common and Δ used reasonable care
  206. If U.S. had applied Rylands test during Indust. Rev. would have cut growth dramatically
  207. Powell v. Fall- sparks from steam engine cause fire on Π’s property
  208. Rule: When statute clearly states liability, common-law supplanted- NEGLIGENCE PER SE.
  209. Most statutes set a minimum standard of care; compliance w/doesn’t mean you’re reasonable/ not liable. May be found negligent per se, but this doesn’t ensure liability. Must still find unreasonableness was legal cause of injury. However, reasonableness never plays a role in strict liability.
  210. Holmes- p. 146, 77- importance of an objective standard
  211. Strict Liability and Negligence: Modern Times
  212. Negligence (question of degree) vs. Strict Liability (Check social attitude toward conduct; then  liable or not).
  213. Stone v. Bolton 1- Π Stone hit by cricket ball from cricket ground close to public road. Δ found negligent.
  214. Rule: One is negligent if there was a reasonably foreseeable risk of severe injury w/no effort to mitigate.
  215. Bolton 2: Δ prevails; Rule: In negligence, consider “question of degree”- 1. remoteness of risk of injury and 2. seriousness of consequences. Liability based on negligence- reasonable standard of care.
  216. D. Kennedy would say law is favoring upper class.
  217. Proper rule for sports teams (negligence v. SL)? Turley- SL, stadiums are CCA (most information, insurance, internalization of cost, gives business incentive to be safer, forces businesses to bear the cost of their activities or be forced out)
  218. Hammontree v. Jenner- epileptic driver crashes into store, injuring Π
  219. Rule: No negligence if taking due care and suddenly overcome by medical condition.
  220. Rule: SL should apply to unforeseeable instances.
  221. Negligence
  222. Introduction
  223. Turley: Determination of the ‘reasonable person’ standard is relative to the situation, culture, society, etc. NOT just duty.
  224. Elements (§ 281):
  225. duty by Δ to act/refrain from acting
  226. breach of that duty by Δ’s failure to conform to required standard
  227. sufficient causal connection btw the negligent conduct and Π’s injury
  228. Actual harm that is measureable/compensable
  229. and… w/in scope of liability
  230. i.e. proximate cause- not necessary though
  231. RST § 282: Negligence- “conduct falling below the standard established by law for the protection of others against unreasonable risk of harm”
  232. The test is objective
  233. Care must be reasonable, not perfect
  234. The Reasonable Person
  235. Knowledge, Experience, and Perception
  236. Reasonable person consists of: Δ’s knowledge and observations, what average society would do (calculation of the risks), Δ’s possible superior intelligence in an extreme case
  237. Knowledge Common to Community
  238. The conduct of a ‘prudent man’ is applied to negligence, which is an objective standard.
  239. Vaughan v. Menlove- ‘dumb’ farmer, dangerous hay rick, burns neighbor’s property
  240. Rule: Sub-standard intelligence (subjective arg.) no excuse; must still meet objective standard (or everyone would claim to be dumb).
  241. Holmes- the law uses an objective standard. The law sees you not as God sees you.
  242. Activities Requiring Skill
  243. Performing a licensed/ special skill activity mitigates consideration of personal attributes (age, impairments, etc.), holding the person to the standard of that class.
  244. Daniels v. Evans- 19 yr. Π old killed when driving a motorcycle
  245. Rule: If participating in an adult activity, held to an adult standard of care.
  246. Age
  247. Children
  248. If adult activity, held to reasonable, adult standard (Daniels).
  249. Otherwise, children who commit negligent acts are held to a subjective standard, considering the age, maturity, and intelligence of the child. < 4 (no capacity for reasonability); 4 – 7/11 (presumption of no capacity); By 11, presumption of capacity; After 14, considered to have capacity.
  250. Rule: Licensed Activity- MUST meet reasonable person standard.
  251. Roberts v. Ring- 77 yr. old man w/sight/hearing issues hits 7 yr. old
  252. Physicians
  253. Majority- Reasonable person = customary practice of reasonably well-qualified practitioner, licensed or not.
  254. Minority- reasonable person = “- - -” + local conditions
  255. Physical Characteristics/ Disabilities
  256. Rule: Public areas must be made safe for all; foreseeability requires anticipation of blindness, height differences, and even intoxication (public policy incentive).
  257. Fletcher v. City of Aberdeen- City leaves unfenced ditch by sidewalk, blind Π falls, injured
  258. Mental Capacity
  259. Rule: Insanity is a defense to negligence ONLY when sudden.
  260. Breunig v. American Family Ins.- Δ has history of mental illness, thinks God is directing her car, crashes into Π
  261. Question to ask: should Δ have known or taken preventative steps?
  262. Calculus of Risk
  263. General:
  264. Two levels:
  265. Commonsense version of negligence
  266. Economic version based on costs and benefits- ‘calculus’ of risk
  267. A reasonable person is not required to avoid all accidents or always pay liability
  268. In negligence, you may kill/hurt a person and not be liable; assumption that some acts are reasonable
  1. Risk-Utility Test: Hand Formula:

If B < P x L  liability for negligence